Mr Guy Berthold v Water & Industrial Engineering Pty Ltd

[2011] FWA 2701

[2011] FWA 2701

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Guy Berthold
v
Water & Industrial Engineering Pty Ltd
(U2010/15409)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 11 MAY 2011

Application for unfair dismissal remedy.

[1] At the hearing of this application Mr Berthold represented himself and Mr A Brown represented Water and Industrial Engineering Pty Ltd (WIE). Mr Berthold commenced employment with WIE on 21st October 2009. Mr Berthold and WIE parted company in early December 2010.

[2] Mr Brown’s evidence was that Mr Berthold had attended the workplace affected by what he thought were prescription drugs. This was confirmed by Mr Berthold who gave evidence that he had been prescribed Valium for his condition of clinical depression. Mr Brown regarded Mr Berthold’s conduct in attending the workplace affected by drugs without any prior warning or any suitable arrangement in place as unsatisfactory conduct. He terminated Mr Berthold’s employment predominantly as a result of this conduct. Mr Brown did not describe the conduct as gross misconduct. At termination of employment Mr Brown did not pay Mr Berthold any money in lieu of notice. He did not provide any justification for withholding that payment. He also did not pay Mr Berthold any accrued annual leave that he might have had. This was partly because Mr Berthold refused to attend and discuss with him what the balance of his leave might be and there were absences by Mr Berthold which were unexplained.

[3] Mr Berthold gave evidence about a number of matters arising from his work on a project that WIE was seeking to obtain as at the date of his termination of employment, including negotiations for future payment of commission to him should that project be obtained by WIE.

[4] In relation to his drug taking and fitness for work, Mr Berthold gave evidence that he had been on Valium as a prescribed drug for a condition which he said was work stress related. In answer to questions by me, Mr Berthold conceded that he had been unfit for work since the termination of employment but had “come good” in the last few weeks. He is not now continuing treatment with Valium but is on a different prescription drug.

[5] I have considered the matters set out in s.387 of the Fair Work Act2009 (the Act). I have concluded there was a valid reason for the termination of Mr Berthold’s employment in that he attended work whilst under the influence of prescription drugs without any notice to his employer or appropriate arrangements. This was not a valid reason for the summary termination of his employment. It was however a valid reason for the termination of his employment with notice.

[6] I have concluded that the termination of Mr Berthold’s employment as a summary termination of employment was harsh, unjust or unreasonable. Mr Berthold was entitled to notice. He was also entitled to have his accrued annual leave and other entitlements paid to him. I have had regard to this issue.

[7] In the circumstances, having considered the difference between what Mr Berthold would have been paid had his employment been termination with notice, and there being no wage loss related to the termination of his employment since December 2010, I have awarded the sum of $4599.45 being three weeks’ gross salary at the rate applicable as at the date of termination of his employment.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr G Berthold appeared for himself.

Mr A Brown appeared for the Water and Industrial Engineering Pty Ltd

Hearing details:

Brisbane:

2011

15 April

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